10/31/2012

What Libertarians Think About the U.S. Constitution Part II: Strengthening the Federal GovernmentMike Rappaport

In my last post, I discussed Jason Brennan’s views of constitutionalism. Here, I want to address Jason’s claim that the U.S. Constitution was not intended to protect liberty but national power. I am not sure exactly what the Philadelphia Convention “intended.” But one obvious possibility here – in fact the one that the Federalists claimed they were pursuing – was that they were strengthening the federal government in order to promote liberty. Strangely, Jason does not discuss this possibility.

One possible basis for Jason’s attitude – one that he does not embrace explicitly – is that any additional power given to the federal government takes away from the liberty of the people. Many libertarians have adopted this view. Murray Rothbard, for example, argued that the Articles of Confederation were better than the Constitution and had they continued we would have seen a further decentralization toward an even more libertarian society.

But such a necessary opposition between liberty and national power betrays something of a confusion. While greater national power can sometimes result in less liberty – witness the New Deal – it can also result in greater liberty. The Federalists made a strong case for this argument in the Federalist Papers that I think is worth remembering.

There are two significant ways that the stronger federal government of the Constitution promoted liberty. First, such a union government made a war between the states much less likely. The Federalists noted that the countries of Europe had fought repeated wars against one another. By contrast, once England and Scotland merged, Britain was able to maintain peace on its island and could use its waters as a natural defense against invaders. As a result, it did not need standing armies, which was an additional protection of liberty. Had the Articles remained, there was a significant change the union would have broke up, and the different states might have fought wars with one another. The union established by the Constitution made that much less likely, until the issue of slavery resulted in the Civil War. The union also allowed the U.S. to better defend itself against potential foreign invaders.

Second, the ideal national government involves a situation where the constitution sets up a limited national government that prevents states from establishing trade restrictions and passing protectionist legislation. It would also set up a system of competition between the states, so that people and capital could move to states with the most favorable laws. The U.S. Constitution moved significantly toward a system of this type.

Having a stronger national government of this type is one of the ways in the real world that liberty has actually been protected. While the U.S. Constitution was by no means perfect, it was a significant improvement over the Articles.

Next time, I want to address Jason’s discussion of Shays rebellion and add one additional way that a stronger national government can protect liberty.